This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).




Farmers Home Mutual Insurance Company,


Mark Havlik, et al.,

Steven Heckmann, by his father
and natural guardian, Brian Heckmann,

Filed November 20, 2007


Worke, Judge


Dakota County District Court

File No. C0-06-7184


Victor Lund, Mahoney Dougherty & Mahoney, 801 Park Avenue, Minneapolis, MN 55404 (for respondent)

Paul W. Rogosheske, Joseph Atkins, Thuet, Pugh, Rogosheske & Atkins, Ltd., 222 Grand Avenue South, Suite 100, South St. Paul, MN 55075 (for appellant)


            Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Worke, Judge.



U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from the grant of summary judgment in favor of respondent insurer, which denied coverage for damages assessed against an additional insured based on policy exclusions for intentional acts and sexual molestation, appellant argues that respondent was collaterally estopped from relitigating issues resolved in the underlying tort action and that the tortfeasor’s mental deficiency rendered him incapable of forming an intent to injure.  We affirm. 


            Appellant Steven Heckmann, by his father and natural guardian, Brian Heckmann, argues that the district court erred by granting summary judgment in favor of respondent Farmers Home Mutual Insurance Company.  When reviewing summary-judgment determinations, this court considers “(1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law.”  State by Cooper v. French,460 N.W.2d 2, 4 (Minn. 1990).  No genuine issue of material fact exists when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ,566 N.W.2d 60, 69 (Minn. 1997) (quotation omitted).  “[T]he party resisting summary judgment must do more than rest on mere averments.”  Id. at 71.  A genuine issue for trial must be established by “substantial evidence.” Id. at 70.  “[S]ummary judgment is inappropriate when reasonable persons might draw different conclusions from the evidence presented.”  Id. at 69.

Appellant argues that respondent is collaterally estopped from retrying issues that were resolved in an underlying action.  Respondent and appellant moved for summary judgment after respondent sought a declaratory judgment that it had no obligation to defend or indemnify (a) defendants Mark and Margaret Havlik (the Havliks), the insureds of a homeowner’s policy issued by respondent and (b) defendant Joseph Havlik (defendant), the Havliks’ son, and an additional insured in an action (underlying complaint) commenced by appellant.  Appellant alleged in the underlying complaint that the Havliks and defendant were negligent for injury appellant suffered as a result of sexual assault committed by defendant on multiple occasions at the Havliks’ home.  Respondent denied liability and refused to defend the claim based on policy exclusions for bodily injury caused by intentional acts and those arising out of sexual molestation.  Prior to trial, appellant, defendant, and the Havliks entered into a stipulation that “[defendant’s] action, by virtue of his mental defect, [was] not an intentional tort.”  Respondent was not involved in or a party to the stipulation.  A district court judge entered judgment against defendant and the Havliks, concluding that defendant was negligent in touching appellant, but “based on his profound mental retardation, [] [defendant’s] actions . . . were not an intentional act or intentional tort.”  

Appellant argues that respondent is now collaterally estopped from retrying the issue of intent because a district court judge found that defendant did not commit an intentional act based on his mental deficiency.  The supreme court has held that the doctrine of collateral estoppel applies when the resolution of an issue in a previous action is necessary and essential to the judgment, but when the issue of intent to injure is not necessary or essential to the issue of an insured’s liability, an insurer is entitled to litigate the disputed issue of intent to injure.  Brown v. State Auto. & Cas. Underwriters, 293 N.W.2d 822, 825 (Minn. 1980).  In Brown, the insured attempted to leave an airport with a piece of luggage without first producing a baggage-claim ticket.  Id. at 823.  The baggage clerk and Brown struggled with the bag; Brown injured his hand and struck the clerk.   Id.  Brown argued that he struck the clerk “reflexively” as a result of the cut on his hand.  Id.  The clerk filed a complaint and the insurer declined to defend on the basis that Brown’s act fell under the intentional-acts exclusion in his policy.  Id.  The court awarded the clerk damages.  Id.  The insurer refused to satisfy the judgment and Brown sought a declaratory judgment that the insurer breached its duties to defend and indemnify him.  Id. at 824.  The court held in favor of Brown and collaterally estopped the insurer from litigating the issue of intent.  Id.  The insurer appealed.  Id.  The supreme court determined that “[t]he issue of intent to injure was not a necessary or essential issue in the determination” of Brown’s liability to the clerk, and that the district court improperly denied the insurer the opportunity to litigate that issue.  Id. at 825. 

The intent to injure in Brown was not required for the clerk to recover on an assault and battery theory; only that Brown intended to do the act of striking the clerk.  Id.  Therefore, the issue of intent to injure was not necessary or essential to the determination of Brown’s liability.  Id.  But whether Brown intended to cause injury was an issue necessary and essential to the determination of whether the act fell under an intentional-acts exclusion in his insurance policy.  Id.   The same is true in this case because appellant, defendant, and the Havliks stipulated that defendant’s act was not an “intentional tort.”  But respondent was not a party to that stipulation, and a determination of whether defendant’s act was an intentional act that falls under an exclusion of the insurance policy is necessary and essential to the determination of coverage.  Thus, the district court did not err in determining that respondent was not collaterally estopped from litigating the issue of intent.

            Alternatively, appellant argues that whether respondent is collaterally estopped does not matter because appellant, defendant, and the Havliks stipulated that defendant’s act was not an intentional tort.  However, this court has held that an insurer can litigate an issue previously stipulated to.  Rohrer v. Rick, 529 N.W.2d 406, 409 (Minn. App. 1995).  In Rohrer, Rick made hang-up telephone calls to the Rohrer home.  Id. at 407.  The Rohrers contacted the police, and Rick admitted to making the calls.  Id.  The Rohrers commenced suit against Rick, alleging that his harassing calls caused them damage.  Id.  Rick acknowledged making the calls, but stated that he did not intend to injure the Rohrers.  IdThe parties entered into a stipulation and reached a settlement; based on the stipulation, the district court found that Rick acted negligently, but with no intent to injure.  Id.   The Rohrers attempted to collect against the insurer, and the company denied liability.   Id.  

            This court held that “[t]he stipulated findings that Rick acted negligently and that he did not intend to injure the Rohrers have no legal impact against the insurer” because there were no disputed facts before the district court when it accepted the stipulation.  Id. at 409.  Additionally, this court noted that the parties could not bind the insurer by mere stipulation when the parties only stipulated as to the negligence claim and the Rohrers had claimed other theories of recovery.  Id.  The court held that the insurer could litigate the issue of intent to injure “[b]ecause negligence and intent to injure were not essential issues in the determination of Rick’s liability.”  Id.  The same is true for this case.  Respondent cannot be bound by the stipulation that defendant’s act was not an intentional tort because the underlying action was not tried upon the facts.  Thus, the district court did not err in determining that the stipulation did not bind respondent.

            Finally, appellant argues that coverage should not be denied because the intentional-act and sexual-molestation exclusions do not apply when defendant’s mental deficiency prevented him from forming the intent to injure.  The Havliks’ policy provides coverage for damages brought against an insured because of “bodily injury.”  The policy excludes “bodily injury” “[w]hich is expected or intended” and that “[a]rising out of sexual molestation.”   

            In D.W.H. through Mitchell v. Steele, D.H., an eleven-year-old foster child sexually assaulted D.W.H., a three-year-old foster child.  512 N.W.2d 586, 587 (Minn. 1994).  D.W.H. commenced suit against D.H., alleging that his intentional sexual abuse caused injury.  Id.  D.H. claimed that because of his age, he could not form the requisite intent to injure.  Id. at 589.  The supreme court rejected D.H.’s claim stating that “in cases involving nonconsensual sexual contact, the court infers intent to harm as a matter of law and without regard to the insured’s subjective view.”  Id. (citing Am. Family Mut. Ins. Co. v. Peterson, 405 N.W.2d 418 (Minn. 1987)).  The intent to harm has been inferred in other cases as well.  See Horace Mann Ins. Co. v. Indep. Sch. Dist. No. 656, 355 N.W.2d 413, 416 (Minn. 1984) (inferring intent to cause bodily injury as a matter of law when a high school teacher sexually abused a female student); Fireman’s Fund Ins. Co. v. Hill,314 N.W.2d 834, 835 (Minn. 1982) (inferring intent to cause bodily injury as a matter of law when a foster father sexually molested a foster child). 

Appellant argues that defendant could not form the intent to injure because of his mental deficiency.  But as prior cases demonstrate, intent to injure can be inferred as a matter of law without consideration of the insured’s subjective view.  Additionally, the evidence does not support the argument that defendant did not have intent to harm appellant.  The only psychologist to interview and assess defendant performed a rule 20.01 evaluation and psychosexual evaluation after a delinquency petition was filed charging defendant with criminal sexual conduct.  The psychologist concluded that defendant understood that he was charged with a serious crime because he touched appellant’s “privates.”  Defendant admitted to the psychologist that he “bad touch[ed]” appellant, that appellant wanted him to stop, that he told appellant that he would not allow him to use the Play Station if he did not do what defendant wanted him to do, that it did not feel right when he was sexual with appellant, that he told appellant not to tell anyone, and that he understood that what he did was wrong and criminal behavior.  The psychologist concluded that defendant has mild mental retardation and probably functions “in the educable/mildly retarded to borderline range of intellectual ability.”  But while defendant was incapable of participating in his defense, he “understood right from wrong when he engaged in the sexually abusive behavior.”  Thus, the intent to injure could be inferred as a matter of law.  Further, respondent also denied coverage under the sexual-molestation exclusion which does not include any requirement regarding intent to injure.  The district court did not err in granting summary judgment in favor of respondent.